Swart v. Kimball

• Decision Date: 28 April 1880
• Citation: 5 N.W. 635,43 Mich. 443
• Court: Michigan Supreme Court
• Parties: SWART v. KIMBALL.

5 N.W. 635

43 Mich. 443

SWART v. KIMBALL.

Supreme Court of Michigan

April 28, 1880

The right of trial by jury in a criminal case is one that cannot be taken away by the legislature, and the jury the party has a right to is one from the vicinage of the alleged offence. Chapter 256, Comp.Laws, in so far as it undertakes to authorize a trial in a county other than where the offence was committed, is void. An affidavit to an information that a party believes the facts stated therein is insufficient. A party cannot protect himself from the effect of an unlawful arrest by the fact that his superior officer directed it. The effect of ambiguous conduct held proper matter for jury. Verdict of $350, in action for false imprisonment, held not excessive.

Error to Alpena.

Kelly & Clayberg, for plaintiff in error.

Turnbull & McDonald, for defendant in error.

COOLEY, J.

This is a remarkable case on the law and on the facts. By "An act for the better protection of the public lands, and to punish the cutting and carrying away of timber therefrom," approved February 12, 1857, (Comp.Laws, c 256,) the cutting down or destroying, or causing to be cut down or destroyed, any trees standing or growing on any of the lands of the state, or lands held in trust by the state or the taking and carrying away any trees or parts thereof or any timber or lumber made therefrom, so cut or destroyed when the same was wilfully and knowingly done, and with intent to convert the same to the use of the party or his employer, was made a felony if the value of the trees, etc exceeded the sum of $25, and a misdemeanor when the value did not exceed that sum. The maximum punishment for the felony was five years' imprisonment in the state prison. The fifth section of the act provided that "all prosecutions under this act may be either by indictment or information in the county where the offence is committed; or, if it be committed in the upper peninsula, in any county of said peninsula; if in the lower peninsula, in the county where the offence was committed, or in such other county as the commissioner of the state land office, or the attorney general, shall, by written instructions to the prosecuting attorney thereof, direct."

The sixth section provides that "such information shall be brought by the attorney general, or by the prosecuting or district attorney of the county where the same is to be prosecuted. It shall set forth the offence with reasonable certainty; shall not be filed nor have effect without an affidavit of some credible person verifying the charges therein contained, which shall be filed at or before the time process shall issue for the arrest of the accused, nor until the circuit or district judge of the court shall, by an indorsement thereon, allow the same to be filed. When so allowed the proper prosecuting attorney shall take out a warrant from the office of the clerk, in the usual form, as near as may be, for the arrest of the accused; and whether the prosecution be by indictment or information, the warrant of arrest may be directed to the sheriff of the same or any other county, and may be served anywhere in the states, by arresting the offender and committing him for trial in the proper county." The further provisions relate to forms and methods of procedure, and need not be recited here.

In the summer of 1878 Mr. Swart, the plaintiff in error, was in the employ of the state land department in looking after trespasses on state lands, and was informed by reports of his predecessor, then on file or of record in the land office, that a trespass had been committed by Kimball, the defendant in error, in the county of Alpena. He went to Alpena, partly to inquire into this trespass, and while there claims to have obtained evidence of a further trespass by Kimball, committed more recently. He went to see Kimball and endeavored to make him settle for the alleged trespasses, but did not succeed. The accounts given by the two parties as to the interviews between them differ very considerably; that of Swart only showing an endeavor in a proper way to obtain a settlement for the timber cut, while Kimball gave evidence tending to show that he denied having committed any trespass, and that Swart made threats of criminal prosecution against him, with the evident purpose to extort money from him whether innocent or guilty. The attempts at a settlement failed, and Swart proceeded to institute a prosecution. He went to Lansing, 250 miles or so from the county of the alleged trespass, and there procured an information to be drawn against Kimball, to which the land commissioner appended an order to the prosecuting attorney of Ingham county, directing him "to prosecute the foregoing information in the county of Ingham, and State of Michigan."

The following is the verification appended to the information:

"State of Michigan, County of Ingham:

"Menzo Swart, of the village of Flushing, in the county of Genesee, being duly sworn, deposes and says: First, that he has heard read the foregoing information, and that he knows

the contents of the same; second, that he knows the contents of the foregoing information, and that he has good reason to believe, and does believe, the same to be true as therein set forth; third, and further saith not. Subscribed," etc.

Upon the information thus verified, and without any further or other evidence that an offence had been committed, or that the accused was probably guilty of any violation of law, a warrant was issued out of the circuit court, for the county of Ingham, commanding the arrest of Kimball and his production in that court to answer the information. Kimball was arrested by virtue of this warrant by an officer, who arrived with him in Mason the third day thereafter and immediately placed him in jail, where he remained for 13 days. At the end of that time he obtained legal assistance and applied to the Hon. George M. Huntington, circuit judge, for a writ of habeas corpus to inquire into the legality of his imprisonment, and the writ having been granted to him he was discharged on a hearing. In the August following he brought suit against Swart for false imprisonment in causing his arrest and incarceration, and obtained judgment, and this judgment is now before us for review on exceptions.

The record in this case does not show on what ground Kimball was discharged by the circuit judge; whether it was because, in his opinion, the act under which the prosecution took place was invalid, or because the proceedings under it were not in conformity to its provisions. The circuit judge who tried the action for false imprisonment seems to have sustained the act. In this he was plainly in error. The act is not only tyrannical and oppressive in the last degree, and such as no legislature, even if its power was ample, should ever have passed, but it is manifestly in conflict with one of the plainest and most important provisions of the constitution. The constitution of the state provides: "The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law." Article 6, � 27. The right is to remain. What right? Plainly the right as it existed before--the right to a trial by jury as it had become known to the previous jurisprudence of the state. Underwood v. People, 32 Mich. 1. The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood under a particular name; and, by implication at least, even a waiver of its advantages is forbidden. If the accused himself cannot waive them, plainly the legislature cannot take them away.

The next section of the constitution repeats the guaranty of this method of trial "in every criminal prosecution," and nothing is better settled on the authorities than that the legislature cannot take away a single one of its substantial and beneficial incidents. Opinions of Justices, 41 N.H. 550; Ward v People, 30 Mich. 116; and even the accused cannot waive any one of the essentials. Work v. State, 2 Ohio (N.S.) 296; Cancemi v. People, 18 N.Y. 128; Hill v. People, 16 Mich. 351; Allen v. State, 54 Ind. 461. Now, that in jury trial it is implied that the jury shall be by vicinage, is familiar law. Blackstone says the jurors must be "of the issue or neighborhood, which is interpreted to be of the county where the fact is committed." 4 Com. 350. This is an old rule of the common law. Hawk. P.C. b. 2, c. 40; 2 Hale, P.C. 264; and the rule was so strict and imperative that if an offence was committed partly in one county and partly in another, the offender was not punished at all. Hawk. P.C. b. 2, c. 25; 1 Chit.Cr.L. 177. This over nicety was long since dispensed with, but the old rule has, in the main, been preserved in its integrity to this day.

It is true that parliament, as the supreme power of the realm, made some exceptions, which are enumerated by Mr. Chitty in his treatise on Criminal Law, vol. 1, p. 179, the chief of these being cases of...